Overview

Legislation

Women are offered very little protection under the law and certain legislation actually undermines women’s security. When President Karzai came into power claiming that he was moderate on women’s issues, there was hope that reforms would be made to protect women. But a bill passed on July 27th, 2009 contained repressive measures specifically for Shia families (10-20% of the population) that not only continued to strip away women’s liberties, but also contradicted the Afghan constitution and international treaties signed by the country. Some of the law’s provisions include the ability for rapists to avoid prosecution if they pay money to the victim’s family, husbands to not give their wives food and water if they refuse his sexual demands, that the sole custody of children is granted to their fathers and grandfathers and that women must receive permission from their husbands if they want to work.[1] While not explicitly stated in penal code, women that have had sexual relations before being married (even if they were raped) or are thought to have committed adultery, face severe consequences including significant jail time or even death.

Employment

Along with the lack of sufficient Education for women, employment also poses a significant problem for women in Afghanistan. Under Taliban rule (1996-2001), women were allowed to set up businesses from their homes, but had severe limitations on their ability to work in public places. Women were permitted to work in medical positions, but they could only treat female patients. Furthermore, women with children were not allowed to work at all.[2]

Since the fall of the Taliban, many women have tried to get back their former jobs as teachers, civil servants and doctors, but while Article 48 of the constitution stipulates that every Afghan has the right to work, the government has done little to help women access the labor market or to develop professional skills.[3] Despite that, the All Afghan Women’s Union has since provided professional training for about 10,000 women entrepreneurs and Microfinance Times claims that about 75% of microcredit borrowers in Afghanistan are women.[2] Women have opened their own small businesses in order to help support their families. The Afghan Women Judges Association has also worked to increase the number of female judges and lawyers (currently about 50 active female judges) in the country and to provide legal advice for vulnerable Afghan women.[2]

Despite these advances, many obstacles remain for women who want to join the labor market. Low literacy rates and poor education contribute to high unemployment levels for women. More importantly, traditional values are frequently evoked to keep women from working. Widespread disagreement about whether women should be able to work outside of the home and if they should be allowed to work in an office with other men has kept women out of most positions. And even for those that have businesses at home, they are still vulnerable to their husbands or other male family members taking control of their profits.

Education

Under the Taliban rule from 1996-2001, girls were banned from education and women were not allowed to partake in outdoor activities. Girls were being obstructed from receiving a proper education due to systematic attacks on girls schools, particularly in rural areas, by the Taliban and other insurgents. With the new constitution, these restrictions were lifted. But attacks on schools continue. In 2010, UNICEF reports that in the 500+ attacks on schools throughout the year (not just girls’ schools), 167 students and school employees were killed and 527 wounded.[4] Female students and teachers have also been directly attacked by militants- some having been doused by acid and others shot directly.[5] UNICEF reports that the youth literacy rate for women aged 15-24 between 2004 and 2008 was only at 18%.[6]

But with new efforts by international organizations and foreign countries to negotiate with the Taliban, progress might be in the works. In the beginning of 2011, the Afghanistan Ministry of Education reported that Taliban leaders had informed elders in rural regions that girls could now attend separate schools as long as they and the female teachers wore the hijab and that the curriculum respected cultural and religious values. Schools have since been reopened and Najibullah Ahmadi, the director of education for the Kandahar Province, claims that thousands of girls have since enrolled.[4] Even if the Taliban respects this commitment, the country still has to face other problems: lack of funding to reopen schools, shortage of female teachers, ensuring security and shifting traditional parental views towards educating girls.

Political Empowerment

Since 2005, a push has been made to encourage women to take part in national politics due to pressure from the United Nations and the Ministry of Women’s Affairs. In the directly elected lower house of the National Assembly, 68 of the 249 seats are reserved for women in the House of the People (Wolesi Jirga). In the upper house, provisions for women’s representation have also been made.[7] Unfortunately, pressure from warlords in rural areas and a traditional patriarchal culture frequently dissuade women, psychologically and physically, from running in elections. Faced with a traditional society that favors clan solidarity over gender equality, many women side with their families even when their rights are not respected within the family.[8] Furthermore, the extremely high percentage of female illiteracy (87%) has often been cited as one of the main reasons that female participation in the country’s 80 registered political parties remains low. Despite the obstacles, 40% of the 8 million Afghans who voted in the October 2004 presidential poll were women.[9] In the 2010 parliamentary elections, women accounted for roughly 16% of the candidates and 41% of the registered voters. Overall, 69 women were elected to the parliament. There were also two women presidential candidates for the 39 male candidates although female participation was inhibited by threats and religious restrictions on appearing in public and travelling alone.[7]

Social Institutions

Afghanistan has long suffered from chronic instability and conflict. The Soviet Union invaded Afghanistan in 1979 to support a communist regime and subsequently withdrew in 1989. Civil wars continued until 1996 when the Taliban took control of Kabul, the capital. Their extreme version and interpretation of Islam has attracted widespread criticism. Following the 11 September 2001 terrorist attacks in the United States, US-led military action toppled the Taliban. The UN-sponsored Bonn Conference in 2001 established a process for political reconstruction. This included the adoption of a new constitution, a presidential election in 2004, and National Assembly elections in 2005.[1] Infighting between local commanders over power and territory has continued during the post-Taliban period. The authorities in Kabul have been able to exert little control beyond the capital and militant violence has continued.[2] The country’s economy and infrastructure need significant reconstruction.[3]
The Taliban’s oppression of women in Afghanistan during their rule from 1996 through 2001 is well documented and included restricting movement, the denial of the right to work, beatings and other physical abuse, arbitrary detention, a near ban on girls’ access to education and restricted access to health services.[4] Following the systematic discrimination and oppression of the Taliban, a new window of opportunity for women has opened in recent years following the fall of the Taliban, the Bonn agreement, new constitution and increased emphasis on gender mainstreaming.[5] The Bonn Agreement called for specific attention to the role of women and established a dedicated government structure for this purpose, the Ministry of Women's Affairs.[6] However, despite these opportunities, there remain significant obstacles to women’s full and equal participation in economic, political, social and cultural life in Afghanistan. Women’s status continues to be shaped by the impact of ongoing conflict including widespread poverty, lack of access to education and no access to health services. Human Rights Watch reports that women’s rights are particularly under threat in conflict affected areas controlled by Taliban and Hezb-i-Islami (Gulbuddin). In these areas, women have been killed and wounded by insurgents and airstrikes. Their daily movements to school and to workplaces have been threatened, denying women the opportunity to pursue economic independence. Women are regularly subject to violent attacks. In the last several years several prominent women in Afghan public life have been murdered.[7] Discriminatory practices, particularly in the family such as early and forced marriage, ‘honour based’ violence, lack of inheritance rights also continue to hinder women’s progress.[8] In the face of these challenges, a 2010 survey of 1005 women from different regions of Afghanistan found that 84% of respondents described the overall situation for women and girls in Afghanistan as good or very good. Further, 85% of respondents were optimistic about the future of Afghanistan.[9]
Article 22 of the 2004 Constitution of the Islamic Republic of Afghanistan provides that the citizens of Afghanistan – whether man or woman – have equal rights and duties before the law. In 2003, Afghanistan ratified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.
In 2011, the Human Development Index for Afghanistan was 0.398, placing the country at 172 out of 187 countries.[10] For the Gender Inequality Index Afghanistan received a score of 0.707, placing the country at 141 out of 146 countries with data.[11]

Discriminatory Family Code

The Civil Code in Afghanistan has stipulated the minimum age as 16 for girls and 18 for boys. The Afghan Civil Code also allows the father of a girl or a competent court to “consent” to the marriage of a girl who is 15 years. The Constitution provides for the recognition of Sharia law. Under Sharia law, there is no minimum age for marriage, however it is generally recognised as the age of a child who has reached puberty.[12]
According to data from the 2010 Demographic Health Survey, 17.3% of girls aged 15-19 were married, divorced or widowed in Afghanistan.[13] This represents a significant decline from 1979 where 54% of 15-19 year old girls were married, divorced or widowed.[14]
In terms of community attitudes towards early marriage, UNAMA conducted a number of focus groups with the general population which reveals that child marriage is generally viewed as a ‘harmful traditional practice’ although viewed as somewhat inevitable and deeply ingrained as a tradition. The research found that in the northern region, most families aim to marry female children by the age of 14. While some members of the community justified the practice on the basis of tradition, others justified the practice pragmatically to protect daughters from possible kidnapping, rape and forced marriage to local commanders and members of illegal armed groups. Some held the view that men prefer to marry young girls because it is easier for a husband and in-laws to establish and maintain control over them.[15] The study also found that due to widespread poverty, child marriage also leads to “selling” of girls, particularly to much older men, who can pay impoverished families for a young girl’s marriage. As older men often take young girls as additional wives, the practice of polygamy can promote child marriage, thus highlighting the interconnectedness of discriminatory social institutions.[16]
Forced marriage is also a serious obstacle to women’s equality in the family in Afghanistan. Forced marriage in Afghanistan encompasses baad (the exchange of girls for dispute resolution), baadal (exchange marriages), child marriage and coercion of widows to marry a relative of a deceased husband. According to a 2008 report by UNIFEM, 70 to 80% of Afghan marriages are forced.[17] Forced marriage is prohibited by the Elimination of Violence Against Women law with penalties ranging from short-term imprisonment to 10 years’ imprisonment. Sharia law also provides that marriages should be entered into with mutual consent, although the father of a woman has the right to approve her choice.[18]
Article 86 of the Civil Code of Afghanistan states that ‘Polygamy can take place after the following conditions are fulfilled: When there is no fear of injustice between the wives; When the person has financial sufficiency to sustain the wives. That is, when he can provide food, clothes, suitable house, and medical treatment; and When there is legal expediency, that is when the first wife is childless or when she suffers from diseases which are hard to be treated.’ Sharia law in Afghanistan provides that men can take up to four wives.[19] A survey of 1400 people conducted by the Women and Children Legal Research Foundation found that the large majority of respondents (87%) disagreed that having more than one wife was a ‘must’ for Afghan society. Only 13% agreed on polygamy as a ‘must’.[20] In terms of factors contributing to polygamy, men cited the reasons of tribal competition, insecurity, custom and tradition, sickness of wife, wealth and not having a son as the main reasons for entering into polygamous marriages.[21] In terms of views on equality in polygamous marriages, 75% of interviewees said it is not possible at all to apply justice and equality in the context of polygamy.[22]
With respect to parental authority, according to the Afghan Civil Code, once children have reached a certain age (nine for girls, seven for boys) guardianship is with the father, or in case of death or divorce, with the family of the father.[23] The right of divorce rests with a husband rather than a wife. While a woman has to show grounds for a divorce in court, a husband can divorce his wife through repudiation (talaq). The grounds for women seeking divorce are limited to the husband suffering an incurable disease, his failure or inability to maintain his wife, his absence from his wife without reason for more than three years or his imprisonment for ten years or more. The World Bank reports that divorce is not common in Afghanistan, and it is considered shameful for a woman to seek divorce. In the event of divorce, women lose custody over older children.[24] The law on adultery or ‘zina’ also discriminate against women, with the law subjecting women to disproportionate prosecution for adultery compared to men.[25]
Women’s right to inheritance in Afghanistan may vary, depending on whether they are determined by Islamic and customary law. Under Sharia law, women may inherit from their parents, husbands or children, and, under certain conditions, from other family members. According to Sharia Law, a daughter inherits half of a son's share and a wife is entitled to only 1/8 of her husband's estate.[26] Under customary law, a wife generally does not inherit.[27] The United Nations Mission in Afghanistan reports that widows are particularly poorly treated with respect to inheritance rights, and commonly forced to marry another male in the family to keep her inheritance in the family. Often, if a widow does not remarry into the same family she risks losing her children.[28]

Restricted Physical Integrity

In 2009, the government enacted the End Violence Against Women Law which criminalises 22 acts as violence against women. These include: rape; forced prostitution; publicising the identity of a victim in a damaging way; forcing a woman to commit self-immolation; causing injury or disability; beating; selling and buying women for the purpose of or under pretext of marriage; baad (retribution of a woman to settle a dispute); forced marriage; prohibiting the choice of a husband; marriage before the legal age; abuse, humiliation or intimidation; harassment or persecution; forced isolation; forced drug addiction; denial of inheritance rights; denying the right to education, work and access to health services; forced labour and marrying more than one wife without observing Article 86 of the Civil Code.[29] However, spousal rape is not prohibited.[30] Penalties include prison terms of less than six months to the death penalty. Victims have the right to prosecute abusers, seek shelter in a safe house and receive medical and legal aid.[31] There are reported cases of women who are victims of domestic violence being arrested and prosecuted for ‘zina’ or adultery, resulting in victims being imprisoned rather than perpetrators.[32]
The law obliges the government to take protective and supportive measures for victims, and to educate and raise awareness about harmful traditional practices and other forms of violence against women. Prosecution offices must treat cases of violence against women as a priority and act expeditiously. The law outlines specific obligations for seven Government ministries and establishes a national High Commission for the Prevention of Violence against Women.[33]
Human Rights Watch has described violence against women and girls in Afghanistan as endemic.[34] A 2008 survey of 4700 women in Afghanistan found that 87% of women had experienced at least one form of physical, sexual or psychological violence, or forced marriage in their lifetimes.[35] UNIFEM reports that forced and early marriage is often a key element of violence against women.[36] The consequences of violence against women are severe. The Government estimates that some 2,400 women commit self-immolation each year, with domestic violence being a key cause.[37] Women are regularly threatened in public with several cases of murder. Human Rights Watch reports on a case in 2010 where an unidentified assailant shot a young female aid worker in Kandahar, who died from her wounds. In the weeks preceding her death she had received threatening phone calls from someone saying he was with the Taliban, warning her to leave her job.[38]
There are a number of significant obstacles to ensuring women’s physical integrity in Afghanistan. Firstly, the large vast majority of women will not seek help because of their fears of police abuse, retaliation by perpetrators of violence and the stigma and shame from their families. Human Rights Watch cites a 2008 study by the Women and Children Legal Research Foundation (WCLRF) which found that only 15% thought that a woman disabled by violence should seek police help. Women who do seek help often come up against attitudes in the police and judiciary that see violence against women as acceptable.[39] Perpetrators enjoy a culture of impunity that is reinforced at every level.[40]
With respect to the implementation of the law, the United Nations Mission in Afghanistan reports that the police and the judiciary are becoming increasingly aware of the law’s existence. However, authorities have received little or no guidance from national-level authorities on how to apply the law, particularly in relation to other criminal laws. In many rural and remote provinces, the law remains both unknown and unimplemented.[41] There is a need for investment in building the capacities of law enforcement personnel, training and awareness-raising to enable civil society organisations to monitor implementation, and education for the general public about the law and what it criminalises.[42] To ensure the safety of women, the Mission also called for an increase in support to shelters that offer a refuge for female victims of violence and for the government to ensure that all shelters are well managed and well secured.[43]
There does not appear to be a law prohibiting female genital mutilation (FGM) in Afghanistan and FGM is reportedly not practiced in Afghanistan.
Women’s physical integrity in Afghanistan is also affected by limited reproductive rights. The Afghanistan Criminal Code of 1976 stipulates that the performance of an abortion is a criminal offence except to save the life of the mother.[44] UNIFEM reports that contraceptive prevalence among women was estimated at 23% in 2008, up from only 5% in 2003. Maternal mortality is exceptionally high in Afghanistan where one woman dies every 29 minutes in child birth - 1,600 deaths per 100,000 live births. Only 19% of births are attended by a skilled birth attendant.[45]

Son Bias

There is a famous proverb in Afghanistan which states: ‘a family without a son is like a home without any light’.[46] The preferential treatment of sons in Afghanistan is reported to be a significant issue. The Women and Children’s Research Foundation reports that this discrimination pervades all aspects of life ranging from birthday parties, naming ceremonies, access to health and education and decision-making with respect to marriage.[47] Son preference is reflected in the data on access to education, with girls being substantially less likely to be enrolled in or attending primary school, compared to boys.[48] UNICEF reports that only 46% of girls are enrolled in primary school, compared to 74% of boys.[49] Further, data from the 2003 Multiple Indicator Cluster Survey finds that 12% of girls aged 5 to 14 are engaged in 28 hours of domestic chores per week compared to 6% of boys, providing an indication of son preference in the allocation of household tasks.
The Central Intelligence Agency reports that the male/female sex ratio for the total population in 2012 is 1.03.[50] The incidence of missing women is particularly severe in Afghanistan. Klassen and Wink in 2003 estimated that around 1 million Afghani women were missing.[51] As such, Afghanistan is a country of concern in relation to missing women.

Restricted Resources and Entitlements

The 2004 Constitution provides that women cannot be precluded from owning or acquiring property.[52] However, as noted in the Family Code section, discriminatory inheritance practices under customary and Sharia law severely limits women’s access to land. A World Bank report cites a 2004 study of land relations in the Faryab province which shows that women’s land ownership varies depending on ethnic group. For instance, while women from Tajik, Arab, Pashtun and Uzbek groups were unlikely to own land, Leghman female landowners were common.[53] However, for the most part, women are very unlikely to own land. Women who do own land, either through inheritance as a widow or from the death of a father, tend to surrender the land to a brother or son.[54] Even if a woman owns land on paper, the man usually exercises the actual control of the land.[55]
Women’s access to property other than land is similarly restricted through discriminatory inheritance practices. In agricultural settings, although men and women spend equal time on agricultural activities, men control expenditure. A 2003 study cited by the World Bank found that livestock was likely to being own either by the household (i.e. owned jointly between men and women) or by men. Only chickens were specifically reported as being owned exclusively and de facto by women.[56]
There is no information available on the law regarding access to credit in Afghanistan. Afghani women have only limited access to bank loans, although this is not necessarily a sign of discrimination as most Afghans, men and women cite limited access to credit as the biggest obstacle to entrepreneurship.[57] Foreign aid has helped to establish several micro-finance institutions in the country, which are available to both women and men. A 2002 study of 87 business women in Kabul found that nearly half of the women indicated that they control their income and 40% of women would be able to take a loan without permission from a male relative. The women cited reliance on male relatives to manage the non-production aspects of their businesses as a constraint.[58]

Restricted Civil Liberties

Prior to the fall of the Taliban in 2001, women’s access to public space was severely restricted by the Taliban’s policies of not allowing women to leave the home without a male chaperone and not allowing women to work outside the home.[59] Women who did not abide by these discriminatory practices were subjected to public beatings, threats and imprisonment.[60] There were no reported legal restrictions on women’s access to public space at the time of drafting. However, as noted in the physical integrity section, although the restrictive practices of the Taliban regime have been lifted, women’s freedom of movement continues to be hindered by threats of violence. Human Rights Watch reports that women who are students, teachers or associated with the government continue to be threatened, particularly through the delivery of ‘night letters’, which are threatening letters left at the door by insurgent groups.[61] Further, social custom continues to limit many women's freedom of movement without male consent or chaperone.[62]
With respect to women’s participation in public life, the US Department of State reports on several protests held by women’s groups in support of women’s rights. However, women’s full and equal participation in public life is severely restricted by threats to safety. An example from 2009 is rocks being thrown at female protesters.[63] As required by law, in 2009, there were 68 women (30%) in the 249-seat ‘Wolesi Jirga’. One woman served in the cabinet. No women served on the Supreme Court Council and there were 203 female judges. The US Department of State reports that many female members of parliament and provincial council members reported death threats.[64]
Afghanistan does not appear to have legislation in place to guarantee women’s equal treatment in employment, including paid maternity leave.

See Also

References

Sources

The FAO Gender and Land Rights Database

The FAO Gender and Land Rights Database contains country level information on social, economic, political and cultural issues related to the gender inequalities embedded in those rights. Disparity on land access is one of the major causes for social and gender inequalities in rural areas, and it jeopardizes, as a consequence, rural food security as well as the wellbeing of individuals and families.

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